Whittingham v. Metro Ontario Inc., 2016 HRTO 1027

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patrick Whittingham

Applicant

-and-

Metro Ontario Inc.

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: August 3, 2016

Citation: 2016 HRTO 1027

Indexed as: Whittingham v. Metro Ontario Inc.

WRITTEN SUBMISSIONS

Patrick Whittingham, Applicant

Daniel Greanya, Representative

Metro Ontario Inc., Respondent

Christian Vernon, Counsel

Introduction

1The purpose of this Decision is to deal with the applicant’s request to reactivate his deferred human rights Application, and the respondent’s request to dismiss the Application on a preliminary basis on the basis of jurisdiction because it is untimely.

BACKGROUND

2The respondent operates grocery stores, one of which employed the applicant. The applicant was a member of the United, Steel, Paper, Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1-500 (the “union”). On October 31, 2014, the respondent terminated the applicant’s employment.

3On November 3, 2014, the union filed a grievance on the applicant’s behalf. On February 26, 2015, the grievance proceeded to arbitration. On June 14, 2015, the union withdrew the grievance.

4On July 17, 2015, the applicant filed a Duty of Fair Representation (“DFR”) Application against his union with the Ontario Labour Relations Board (“OLRB”).

5On December 3, 2015, the applicant filed a human rights Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) with this Tribunal, which alleged that the respondent discriminated against him with respect to employment because of his race, colour, ancestry, place of origin, ethnic origin, and disability.

6In his human rights Application, the applicant requested that the Application be deferred pending the conclusion of the DFR Application before the OLRB.

7In the narrative of his human rights Application, the applicant specifically alleged that the respondent subjected him to racial harassment and discrimination during his employment, and terminated his employment because of a perceived disability. He also alleged that following the termination of employment, the respondent failed to issue his Record of Employment (“ROE”) in a timely manner, and failed to correctly pay him outstanding amounts owed to him until February 19, 2015. He did not link these latter allegations to a specific Code ground.

8In section 7(c) of the human rights Application (“What was the date of the last event?”), the applicant wrote: “February 19, 2015”. However, in the narrative of the Application, he provided submissions, which argued that, if his Application was filed outside the one-year time limit in s. 34(1) of the Code, his delay in filing his Application was incurred in good faith.

9On January 22, 2016, the respondent filed a Response, which denied the allegations of discrimination, consented to the applicant’s request that the human rights Application be deferred, and requested that the Tribunal dismiss the Application on a preliminary basis on the basis of jurisdiction because it is untimely. The respondent provided submissions in support of its dismissal request.

10On February 12, 2016, the applicant filed a Reply, which opposed the respondent’s request to dismiss his human rights Application on a preliminary basis on the basis of jurisdiction because it is untimely. The applicant provided submissions in support of his opposition to the respondent’s dismissal request.

11On February 23, 2016, the Tribunal deferred the human rights Application pending the conclusion of the DFR Application before the OLRB.

12On June 02, 2016, the OLRB issued a Decision, which dismissed the applicant’s DFR Application.

13On June 16, 2016, the applicant filed a Request for an Order During Proceedings (“RFOP”), which requested that the Tribunal reactivate his deferred human rights Application. He attached a copy of the OLRB’s Decision.

14On June 27, 2016, the respondent filed a Response to the RFOP, which appeared to consent to the applicant’s request to reactivate his deferred human rights Application unless he is intending to file a Request for Reconsideration of the OLRB’s Decision or an Application for Judicial Review with the Divisional Court. The respondent also reiterated its request that the Application be dismissed on a preliminary basis on the basis of jurisdiction because it is untimely.

REQUEST TO REACTIVATE

15I will deal first with the applicant’s request to reactivate his deferred human rights Application

16Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure provide that where a party wishes to proceed with an Application which has been deferred, the party must file an RFOP with the Tribunal and deliver it to the other parties within 60 days after the conclusion of the other proceeding, and must include a copy of the decision or order in the other proceeding, if any.

17In my view, the Application should be reactivated because the applicant has complied with the requirements in Rules 14.3 and 14.4. There is no evidence before me that the applicant intends to file a Request for Reconsideration of the OLRB’s Decision or an Application for Judicial Review with the Divisional Court.

18Accordingly, the applicant’s request that the Tribunal reactivate his deferred Application is granted.

REQUEST TO DISMISS

19I will deal next with the respondent’s request to dismiss the Application on a preliminary basis on the basis of jurisdiction because it is untimely.

20The time limit for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

21The first issue to determine is when the last alleged incident of discrimination occurred.

22In his submissions, the applicant stated that the last alleged incident of discrimination occurred on February 19, 2015 because following the termination of his employment, the respondent delayed in providing him with his ROE and final pay. He stated that this conduct was “part of a consistent pattern of discriminatory behavior by the respondent.”

23I disagree. I find that the last alleged incident of discrimination occurred on October 31, 2014 when the respondent terminated the applicant’s employment. In the narrative of his Application, the applicant provided an explanation as to why he believed that the incidents preceding the termination and the termination itself were discriminatory on the basis of race, colour, ancestry, place of origin, ethnic origin, and disability. By contrast, there is no such explanation in either the narrative of his Application or his submissions on the timeliness issue with respect to the post-termination of employment incidents. There is merely a bald statement that the incidents were “discriminatory”. In my view, the applicant is trying, unconvincingly, to characterize these incidents as Code-related in order to fit his Application within the one-year time limit in s. 34(1) of the Code.

24Given that the last alleged incident of discrimination occurred on October 31, 2014, but the Application was not filed until December 3, 2015, I find that the Application was filed approximately four and a half weeks outside the one-year time limit in s. 34(1) of the Code.

25The second issue to determine is whether the applicant’s delay in filing his Application was incurred in good faith.

26In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25, what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 (“Cartier”) at para. 21.

27In his submissions, the applicant stated that any delay in filing his Application was incurred in good faith because his union started a grievance in relation to his wrongful termination, and his reasonable expectation was that human rights matters would have been raised as a part of that process.

28I disagree. The union withdrew the grievance on June 14, 2015, which was well before the expiry of the one-year time limit in s. 34(1) of the Code. At that point, the applicant still had more than four months to file his Application in a timely manner with this Tribunal, but he failed to do so. He has not offered any explanation, let alone a good faith one, why he waited until after the expiry of the one-year time limit in s. 34(1) of the Code to file his Application with this Tribunal.

29I have noted that the applicant filed a DFR Application against his union with the OLRB on July 17, 2015, which was a few weeks after the union withdrew the grievance. I do not understand the applicant to be arguing that he was waiting for the proceeding before the OLRB to be completed before filing his human rights Application, but if that is what he is suggesting, I would point out that this Tribunal has held that waiting for other proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. In Cartier, above, the Tribunal stated at para. 23:

(…) The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other fora relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application.

30In view of my finding that the applicant’s delay in filing his Application was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

ORDER

31The Application is dismissed.